USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 92-2227
SIERRA CLUB, ET AL.,
Plaintiffs, Appellants,
v.
THOMAS D. LARSON, ET AL.,
Defendants, Appellees.
___________________
No. 92-2323
SIERRA CLUB, ET AL.,
Plaintiffs, Appellants,
v.
THOMAS D. LARSON, ET AL.,
Defendants, Appellees.
______________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
___________________

____________________

No. 92-2282
SIERRA CLUB, ET AL.,
Petitioners,
v.
JULIE BELAGA, ETC.,
Respondent.
____________________
PETITION FOR REVIEW OF AN ORDER
OF THE ENVIRONMENTAL PROTECTION AGENCY
_____________________
Before

Boudin, Circuit Judge,

_____________
Campbell, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________

Thomas B. Bracken with whom Bracken & Baram was on brief

__________________
________________
appellants.
George B. Henderson, II, Assistant United States Attorney, w
________________________
whom Myles E. Flint, Acting Assistant Attorney General, A. J
________________
____
Pappalardo, United States Attorney, Robert L. Klarquist, Attorn
__________
____________________
Department of Justice, Michael
Kenyon, Attorney, United Sta
________________
Environmental Protection Agency, Judith Tracy, Attorney, United Sta
____________
Environmental Protection Agency and Irwin Schroeder, Attorney, Fede
_______________
Highway Administration,
were on joint brief
of appellees
respondent, for federal appellees.
William L. Pardee, Assistant Attorney General, Commonwealth
__________________
Massachusetts,
with whom
Scott Harshbarger,
Attorney Gener
__________________
Commonwealth of Massachusetts, was on joint brief of appellees
respondent, for state appellees.
____________________
August 6, 1993
____________________

BOUDIN, Circuit Judge.

_____________
appeals

In this

case, the Sierra

Club

from the judgment of the district court declining to

enjoin construction of the central artery/third harbor tunnel

project in Boston.

It also petitions to review the action of

the Environmental Protection Agency in approving an amendment

to

Massachusetts

project.

state

regulations

that

bears

upon

the

We affirm the district court and deny the petition

for review.
I. THE FACTS AND PRIOR PROCEEDINGS
Massachusetts, through its
has

begun construction

rebuilding a
runs on a

major segment of

viaduct through

"the central artery."

is

of a

completed some

Department of Public
mammoth project

Works,

that includes

Interstate Route 93

downtown Boston and

that now

is known

as

When the central artery/tunnel project

years

from now,

the highway

segment in

question will be widened, sunk below ground level, and mostly

covered.

It

will connect

at the

north with

a new

bridge

across the Charles River and at the south with a newly

built

third

Logan

harbor

tunnel

running

from South

Boston

to

Airport in East Boston.

The depressed and covered portion of the new highway and
the

tunnel will

buildings located
portals.
highway

be

ventilated by

on the highway

ducts

and fans

route and near

in

six

the tunnel

Vast amounts of air will be drawn into the covered

and tunnel, and the mixture of air and motor vehicle

-3-3-

emissions will be
exhausted
Studies

pumped up

through the

through stacks ranging

indicate

congestion,

that

increase

the

six buildings

from 90 to

project

will

average speeds,

and

and

225 feet high.

reduce

traffic

reduce area-wide

carbon monoxide and hydrocarbon emissions.

The

Sierra

Club,

believes that whatever the

non-profit

environmental

group,

area-wide effects of the project,

it will create new "hot spots" of pollution in certain of the

neighborhoods near
view, pollution
burners,

to the six ventilation buildings.

control equipment,

should be

The federal and

in the nature

installed in the

In its

of after-

ventilation buildings.

state governments, which have

filed a joint

brief in this case, deny that any dangerous hot spots will be
created,

pointing

to

studies

project's environmental review.

burner

technology

is

not

conducted

as

part

of

the

They also assert that after-

feasible

because

of

the

low

concentration of pollutants in the vented air.

In
members

March
who

1991,
live

the Sierra

in the

Club

vicinity

of

and

certain

of its

the central

artery

brought
and

suit in district court against a collection of state

federal

officials associated

gravamen of the

suit was

ventilation buildings
"major stationary
used in the

with

the

the Sierra Club's

planned

for the

source" of air

Clean Air Act,

project.

The

claim that

the

project comprised

pollution as that

42 U.S.C.

term is

7401, et seq.,
_______

and

-4-4-

counterpart Massachusetts regulations,

seq.
___

310 C.M.R.

7.00

et
__

It is common ground that, if the ventilation buildings

were so classified,

then the project would

require a permit

or permits from Massachusetts that have not been secured.

To

frame this issue entails a brief description of the statute.

The Clean

Air Act

several times amended, to

in

the

statute

United States.

enacted a complex

statutory regime,

control and mitigate air pollution

Broadly

speaking,

regulates stationary sources

Title I

of the

of pollution and Title

II regulates mobile sources, most importantly motor vehicles.

For

specified pollutants, national air quality standards are

promulgated

by

EPA.

42

U.S.C.

7409.

Whether

new

construction of polluting facilities is permitted in an area,

and what

kind of controls

the area is below

Part C,
standard

or above the standard for

42 U.S.C.
has

7470-7492,

been attained;

nonattainment areas.
In

are required, depends

either

Id.
__

event, the

Part

on whether

each pollutant.

governs permits where

D

applies to

the

so-called

7501-7515.
construction

of

a "major"

new

stationary source--normally, one emitting 100 or more tons of

pollutant
requires

each

year,

a permit.

see 42
___

42 U.S.C.

U.S.C.

7602(j)--generally

7475(a), 7502(c)(5).1

In

____________________
1The definition of "major stationary source" in section
7602(j) directly governs permits under part D where the same
phrase is used in section 7502(c)(5)'s permit requirement.
Part C requires permits for specified "major
emitting
facilities," in areas already in compliance with pollution
-5-5-

the case of

Boston, some

of the pollutants

that will

flow

through

the proposed ventilation

national standards so

buildings currently exceed

that new major sources

are subject to

the more stringent class of limitations; other pollutants are

below the standards and less stringent limitations apply.

By

way of example, the Boston area exceeds the national standard

for

carbon

monoxide, and

to

secure a

proponents would have to show that a

can achieve
pollutant.
The

42 U.S.C.

is

and to the states on

directed to

national standards

7410(a).
adopt

See also
________

an

adopt

regulations
Massachusetts
Under
enjoin

for

plan,

the

area.
approved

the Clean Air Act,

submit

by EPA.

to EPA

for

EPA

must

42

U.S.C.

state

adopt

federal
7410(c).

implementation

a permit under

42 U.S.C.

42 U.S.C.

If the state fails to

"citizen" suits may

a project that requires

but has not obtained one.

the other.

plan to achieve and maintain

7471, 7502.

the

has an

and

established

id.
__

approvable

for that

allocates different responsibilities

approval a state implementation

the

major stationary source

7503(a)(2).

on the one hand

state

the highway

achievable emission rate"

Clean Air Act

to the EPA
Each

the "lowest

permit

plan.

be brought to
Parts C or D

7604(a)(3).

____________________
standards, 42 U.S.C.
7475, 7479, but--with qualifications
not here relevant--the statute instructs that the terms
"major stationary source" and "major emitting facility" be
used interchangeably. 42 U.S.C.
7602(j).
-6-

-6-

In
of

this case, in April 1991 the Sierra Club and certain

its

members

sought

construction of the
request was

preliminary

denied on July 30, 1991.

another judge,

briefing

and argument.
summary

injunction

central artery and tunnel

case to

granted

On September

defendants, state and

in

project.

The

After transfer of the

the district court

judgment

against

favor

received further

16, 1992,
of

the court

the

federal, holding that the

government
ventilation

buildings did not comprise stationary sources subject to preconstruction permit

requirements.

The Sierra Club

and its

named members appealed.

Shortly before the lawsuit, the Massachusetts Department
of

Environmental

Protection

submitted

to

the

EPA

on

January 30, 1991, a new regulation--regulation 7.38, codified

as

310

C.M.R.

Massachusetts
seeks

7.38--as
state

to classify

had begun

to

proposed

implementation plan.
tunnel

sources" under the Clean

EPA

amendment

require that

the

This regulation

ventilation systems
Air Act.

to

as "indirect

In the early 1970s,

state implementation

the
plans

regulate

such

garages that

facilities
do not

as

parking

lots,

highways

emit pollutants themselves

numbers of polluting vehicles.

and

but attract

Congress responded in 1977 by

barring the EPA from regulation of what were called "indirect

-7-7-

sources."

42 U.S.C.

the same time gave

7410(a)(5)(B).2

However, Congress at

the states permission, if they

so chose,

to regulate such indirect sources themselves as part of their

state implementation plans.

Id.
__

7410(a)(5)(A), (C).

Massachusetts, exercising this option through regulation

7.38,
systems

proposed
as

to

indirect

roadway/tunnel

sources.
builder

The
that

involves

specified

pollution

by

standards will

be met,

Protection may

accept, conditionally approve,

and the Department

notice and

hearing.

ventilation

regime

certification

certification after

the

regulate

of Environmental
or reject the

Monitoring

after

construction and
required.
are not
for

The

periodical renewal
new regulation also

of the certificate
states that the

subject to the pre-construction

various

C.M.R.

stationary sources

are

systems

permitting required

under regulation

7.02, 310

7.02.

The Sierra Club opposed

the approval of regulation 7.38

when Massachusetts submitted it to the EPA as an amendment to

the state implementation plan.
the
issue

effect would
in this

The Sierra Club

be indirectly

case of

the more

to

relieve the

argued that
project at

stringent pre-construction

____________________
2To the extent that a highway or other major indirect
source is federally assisted, the EPA retains some direct
regulatory authority, see 42 U.S.C.
7410(a)(5)(B); but no
___
claim has been made that the project in this case is in
violation of any requirements laid down by the EPA under this
reservation.
-8-8-

approval required of major stationary sources under the Clean

Air

Act

stationary

and the

Massachusetts

sources.

After

regulations

notice

and

that apply

receipt of

to

public

comments, the EPA on October 8, 1992, published notice of its

approval,

57 Fed. Reg. 46310

petitioned

for review

of

pursuant to 42 U.S.C.
Because of the
this

court

(1992).

the EPA's

The

Sierra Club then

action

in this

court

7607(b)(1).
overlapping issues

consolidated

the

and common

two appeals

subject,

taken

from

the

district court judgment with the proceeding for direct review

of

the EPA

action.

jurisdictional

In this

objection raised

opinion, we
by the

address first

federal defendants,

then statutory issues posed by the appeals from the

court,

and

finally

the

additional

Massachusetts regulations

issues

district

posed

and by the petition

by

the

to review the

EPA's action approving regulation 7.38.

II. JURISDICTION
The

federal

argument,

defendants

not passed

upon

The

in

below, that

"lacked jurisdiction" over the

defendants.

renew

this

court

their

the district

court

complaint against the federal

"citizen suits" provision of

the Clean Air

Act permits private suits in three defined classes of

As

already

against

noted,

anyone

stationary

who

it

explicitly permits
"proposes

to

private

construct"

any

cases.
suit
major

source without a permit required by parts C or D.

-9-9-

42 U.S.C.
they

7604(a)(3).

The federal

are proposing to construct

it; in other

defendants deny

the project or

words, they argue that if anyone

that

any part of
is subject to

suitunder subsection(a)(3), itis onlyMassachusetts officials.

The

statute

also

permits

such

emission standards or limitations

EPA

citizen

suits

where

are exceeded, or where the

Administrator has failed to perform an act or duty under

the Clean

Air Act "which

U.S.C.

7604(a)(1),

federal

defendants argue

standards or
that the

is not

(2).

As

that

limitations would

EPA Administrator

discretionary . .
to

."

42

these categories,

the

any violations
be those of

cannot be

of

emission

the state,

sued for

and

violating a

non-discretionary duty since enforcement by the Administrator

is inherently a discretionary matter.
The

Sierra

Club,

responds, unpersuasively,

jurisdictional objection

has been

waived by the

the federal defendants to cross appeal.3

Sierra Club urges that
discretionary duty by
project,

and

Administration

that
is so

that

failure of

More usefully, the

the Administrator did violate a

failing to take
in

any

closely

planning of this project as to

event

any

action to enjoin
the

involved in

Federal

nonthe

Highway

the funding

and

be effectively a party to its

____________________
3The jurisdictional objection could be viewed as an
alternative ground
for
sustaining the
denial of
an
injunction, dispensing with any need for a cross appeal. In
any event, courts are expected to "notice" jurisdictional
objections even if no one has raised them.
-10-10-

construction.
Club's

However, like the government brief, the Sierra

brief is

silent

these questions have in

that

Massachusetts

as to

what practical

implications

this case where no one

has disputed

defendants

can

be

enjoined

from

construction if a permit is required.

Absent some

showing that

practical importance in
Since

the Massachusetts

the jurisdictional

issue has

this case, we decline to address it.

officials are

subject to

suit for

constructing the project without a permit, the merits must be

reached in
their

any event.

favor,

the jurisdictional

defendants is pretty
of the

And since we

resolve the merits

issue

as

close to moot, affecting

dismissal as to them.

There is

by-passing jurisdictional objections when

to the

in

federal

only the form

ample precedent for

the court can more

easily dismiss on the

merits.

E.g., Norton v.
____ ______

Mathews, 427
_______

U.S. 524, 532 (1976).

III. THE STATUTORY ISSUES
The

merits

judgment

of

the

turn principally

appeals from
on

the

a narrow

district

point of

construction, namely, whether the ventilation

will vent the underground

court

statutory

buildings that

highway and harbor tunnel comprise

a "stationary source or sources" within the meaning the Clean

Air Act.
amount
not

If so labeled, a permit is required; apparently the

of pollutant needed to qualify as a "major" source is

at issue.

Easily stated,

the

issue is

less

easily

-11-11-

resolved: there is little by way

useful

judicial precedent or

of statutory definition, no

legislative history offered to

us, and a reasonable possibility that Congress never gave any

thought

to

the

idiosyncracy

posed

by

these

ventilation

buildings.
Starting as one normally does with language, parts C and

D, which contain the pre-construction permit requirements for

major stationary sources, originally contained
of

stationary

stationary
emitting the

source.

source" as

"any

Part

(see

part

defines

stationary facility

specified quantity

cross-reference
language.

Instead

no definition

note

1,

of pollutant.
above),

A, concerned

with

or source"
Part C,

adopts

so-called

a "major

the

by
same

performance

standards, other than air quality standards, did use the term
"stationary

source" in 42 U.S.C.

7411, defining it as "any

building, structure, facility, or installation which emits or

may

emit any air pollutant."

definition,

however,

was

42 U.S.C.

adopted

"for

7411(a)(3).
purposes

of

That
this

section," i.e., section 7411.4

____

____________________
4The obscurity of the relationship between the part A
definition just quoted and the "major stationary source" in
parts C and D was the subject of comment by the Supreme Court
in Chevron U.S.A., Inc. v. Natural Resources Defense Council,
____________________
__________________________________
Inc., 467 U.S. 837, 859-860 (1984). Yet another definition
____
of stationary source appears in, and is apparently limited
to, a provision of part A concerned with accidental release
of hazardous substances. See 42 U.S.C.
7412(r)(2)(C).
___
-12-12-

Thus far the breadth of the

language appears helpful to

the Sierra Club position, since linguistically

system

with a stack could be called a "facility," a "source"

or even a "building."
1977

a ventilation

when Congress

"indirect

The table tilted back the other way in

amended

sources"

implementation

from

plans.

the Clean
mandatory

42

U.S.C.

Air

Act to

coverage

exclude

in

state

7410(a)(5)(A).

An

indirect source is defined in the statute as

a facility, building, structure, installation, real
property, road, or highway which attracts, or may
attract, mobile sources of pollution.
Such term
includes parking lots, parking garages, and other
facilities subject to any measure for management of
parking supply . . . .
42 U.S.C.
bear

the

7410(a)(5)(C).
brunt

of

Asserting that auto makers should

reducing

imposed the limitations already

tailpipe

emissions, Congress

described on the EPA efforts

to regulate the magnets for vehicles rather than the vehicles

themselves.

See
___

H.R. Rep.

No. 294, 95th

Cong., 1st

Sess.

219-227 (1977).
Although indirect sources are not in terms excluded from
the definition of stationary sources--the former provision is
cast instead as
the amendment

a limitation on EPA authority--the effect of

is

to treat

indirect sources

as a

separate

category of sources subject to a different legal regime.

The

states

may

still

implementation

"choose[]"

plans, 42

to

regulate

U.S.C.

decision whether and how

them

in

state

7410(a)(5)(i), but

to regulate is left largely

the

to the

-13-13-

states.

Our best reading

after 1977,
stationary

an indirect

of the statute is
source is

source under Parts C

Corp. v. EPA,
_____
___

504 F.2d

only

attract

not to be

and D.

646, 669 (1st

structures, which themselves emit

vehicles

which

that, at least
treated as

Cf. South Terminal

__ ______________
Cir. 1974)

("parking

no pollutants but
emit

pollution,

instead
are

not

stationary sources").
Assuming that a stationary source and an indirect source
are

exclusive

categories,

whether ventilation

the difficult

buildings should be

former or to the latter.

The terms

ones,

were developed against

complex statute

with

remains

assimilated to

the

It is a question that dictionaries

cannot answer.
and they

question

are technical rather

than common

the background

interlocking provisions

and

of a

specific

goals.

Nor does

legislative history furnish any clue

Congress' intent
small corner

for

ventilation buildings.

among possible applications of

Perhaps

as to
this

the statute was

simply overlooked.
Similarly,
answer

it

is difficult

from analogy or policy.5

to

derive

any clear

cut

A covered highway or tunnel

____________________
5The Sierra Club urges that the definition of stationary
source is analogous to the definition of "point source", 33
U.S.C.
1362(14), in the Clean Water Act and that we should
regard the related caselaw as precedent.
See National
___ ________
Wildlife v. Gorsuch, 693 F.2d 156, 173-174 (D.C. Cir. 1982).
________
_______
We find little help from a different term used in a different
statutory scheme. Nor do we think that it matters whether,
as the Sierra Club asserts, pollution tests or projections
done by engineers for the ventilation systems are akin to
-14-14-

with

a ventilation system is akin to an uncovered highway or

open

sided

garage--clearly,

senses: in each instance the

indirect sources--in

multiple

facility or space attracts more

cars, pollution in the vicinity may be greatly increased, and

the initial source

of the pollution is

the cars themselves.

On the other hand, the possibility exists (no information has

been

provided to

us

ventilation systems
garage

in

on the
may

be more

concentrating

specific area; and

and

on this

distinguish between
ventilated without

point)

that the

potent than

expelling

Thus

a highway
in

other, one

a facility that

mechanical aid.

scale

pollutants

ground, if no

them and

large

or
a

might

is ordinarily

the analogy hardly

dispels all doubt.

Two other

arguments pressed by

inconclusive.
added

to

I in

which for

1990
the

source as meaning "generally

except those
combustion

without

for

. . ."

word

42 U.S.C.

"directly,"

defines

7602(z).
that

its

stationary
pollutant

directly from an

transportation purposes

arguing

as to

any source of an air

emissions resulting
engine

limitation

first time

nonroad engine or nonroad vehicle

.

to us

The Sierra Club points us to a new provision,

Title

application,

the parties seem

or

internal
from

as defined in section 7550

The Sierra Club stresses the
the

emissions

from

the

____________________
those done for stationary sources; presumably, they would
also be similar if the system vented a large garage, which is
unquestionably an indirect source.
-15-15-

ventilation shaft do not fit the

auto emissions
Club's

"except" clause because the

are emitted first ("directly,"

view) into the air

of the covered

in the Sierra

highway or tunnel

andonly thengatheredbyfansand spewedoutthroughtheventilators.

The government brief offers its
language, but
and

what

both sides'

is an

arguments about what

"indirect" emission

Medieval dispute in theology.

framed

this new

have

(z) to

the flavor

deal

namely, to include

source definition mobile sources

portable asphalt

is "direct"

The reality is that

subsection

different problem,

port and

own parsing of this new

of a

Congress

with an

entirely

within the stationary

of pollution, like ships in

concrete plants,

so far

as they

emit pollutants as part of their stationary activities, e.g.,

_____
by leaking fuel at dockside
that

occur

when

destination).
(1990).

the

(in contrast to engine emissions

ship

S. Rep. No.

In other words,

or

plant

travels

228, 101st Cong.,

to

new

1st Sess. 376

Congress was not addressing

tunnel

ventilation when it drew up this new provision.

Conversely,
argument
Admittedly,
that

based

are

upon

doubtful
the

Congress did

in Title

stationary

we

I,

sources;

with
that

about

structure

establish

the
of

government's
the

two different

which

we are

in

Title

concerned,
II

created

statute.
regimes:
governed
a

quite

different regime, part of which is familiar to anyone who has

car

inspected, to

regulate

vehicle emissions

directly.

-16-16-

This

symmetry could

suggest

that

tailpipe

pollution--the

source of the pollutants at issue here--was not meant to fall

within Title I at all.

The difficulty is that Congress might

not have minded two layers of control, and contrivances

the "indirect

source" provision in

Title I blur

like

the notion

that auto pollution is exclusively a Title II problem.

In the end,

we think the balance is

explicit administrative interpretation

adopted
7.38

by the EPA.

tipped here by the

of the Clean Air

Act

In approving the addition of regulation

to Massachusetts'

state

implementation plan,

the EPA

stated:
Tunnel ventilation systems, which do not generate
their own emissions but rather
simply funnel
emissions from mobile sources, are not stationary
sources within the meaning of the Clean Air Act.
57 Fed. Reg. 46310, 46311 (1992).
us that in

The Supreme Court has told

construing a statute the courts should ordinarily

show

measure

of

administering the
that

precept

application of

deference to

statute.6

is

The

Chevron,
_______

the very

the

agency

charged with

case most often

which

involved

same "stationary

cited for
different

source" provision

that is now before us.

____________________
6See Environmental Protection Agency v. National Crushed
___ _______________________________
________________
Stone Ass'n, 449 U.S. 64, 83 (1980); Chevron, U.S.A., Inc. v.
___________
_____________________
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984);
_______________________________________
United States v. City of Fulton, 475 U.S. 657, 666 (1986);
______________
_______________
National Labor Relations Board v. Food and Commercial Workers
______________________________
___________________________
Union, 484 U.S. 112, 123 (1987).
_____
-17-17-

The Chevron doctrine has been the subject of much debate

_______
and,

in subsequent

softened its

decisions,

the Supreme

impact somewhat and

e.g., INS v. Cardoza-Fonseca,

Court may

in some situations.

480 U.S. 421, 448 (1987).

have
See,
____
To

____
be

___

_______________

sure,

the

courts

interpretation--the

have

the

question

last

is one

word

of

on

the

statutory

weight to
______

be

accorded to agency views--and often the statute's language or

history
the

leaves no latitude for

issue

operation
meaning

of
of

interpretation
the statute

is clear, it

the courts to

the agency.
may

that,

be

so

central

whether

or not

is improbable that

defer to the agency.

In other cases
to

the

Congress'

Congress meant for

We do not think these or

other qualifications on Chevron deflect its impact here.

_______
On the contrary, this statute
before us,
read

at least when

together with

structural

the

is ambiguous on the issue

__

the words "stationary

"indirect source"

juxtaposition

of

Titles

source" are

proviso and
and

II.

the
The

application of the stationary and indirect source language to

tunnel

ventilation is

not the

fringe

issue on which

Congress did not

intent.

The

Clean

technical statute
and

the

task

Air Act

heart of

is

the statute

clearly express its

an immensely

more familiar to EPA than

of

making

its

parts

but a

complex

and

to anyone else,

function

together

harmoniously is entrusted to many actors but above all to the

EPA.

-18-18-

In sum this is a case in which Chevron

_______
the agency
Rather,

are

in

this

not make-weights
fairly

or

debatable

subsidiary
case,

arguments.

where

is

policies

and analogies can be and have been mustered on both

we

reading

is

perfectly

think

that

the EPA's

decisive.

It

is

history

statutory

language

sides,

ambiguous, legislative

and deference to

unqualified

to EPA's reading

and

unnecessary

the weight to be accorded to

case of this species:

is silent

to

and

precise
calibrate

the agency view in a

once "considerable" weight is accorded

of the

statute, see Chevron,

___ _______

467 U.S.

at

844, it is enough to tip a set of scales otherwise so closely

balanced.
IV. THE MASSACHUSETTS REGULATIONS AND EPA APPROVAL
Our concern
over.

with the district

Even if Congress

facilities
possibility

in

this

did not
case

remains that

as

court case is
designate the
stationary

Massachusetts

not quite
ventilation

sources,

has adopted

the
in its

state implementation plan--and then

sought to ignore for its

own construction project--pertinent

legal restrictions

can be implemented through a

that

suit under the Clean Air Act.

Of

course, not every state-law restriction on a project is a

matter of federal

concern, but a

state restriction that

is

part of a federally

approved state implementation plan under

the

may at

Clean

Air Act

least

in some

circumstances be

-19-19-

within the purview of a citizens suit under 42 U.S.C.

At
argue
source,

one point

in its

that whatever
Massachusetts

regulation

7.02,

310

brief, the

Congress may
in

its

Sierra Club

have meant

general

C.M.R.

has

seems to

by stationary

permit

7.02,

7604.

requirement

required

pre-

construction approval of a

class of facilities that includes

the ventilation

in this

regulation

7.02

Massachusetts'
Massachusetts has
we will

buildings
has
state

been

case.

approved

by

implementation

adopted a later version

assume arguendo that the

________

One
EPA
plan.

version
as

part

of
of

Although

not yet approved,

___

original, approved version

of the regulation still exists as a matter of federal law and

that a violation of this version

might well be remedied by a

citizen suit under the federal statute.7

The difficulty

with the Sierra Club's

government brief points out, is

face applies

to a short

that this regulation on

list of specific

chemical products manufacturing plants)

highways,

tunnels or

argument, as the
its

facilities (e.g.,
____

that do not

associated ventilation

include

systems.

The

____________________
7The Sierra Club also argues that the more recent
version of regulation 7.02 applies to the project (or would,
if not invalidly qualified by regulation 7.38); but we need
not decide whether the more general language of the new
version could embrace highway and tunnel ventilation systems.
The new version does not reflect a federally approved
requirement, nor do we think that it casts any light upon, or
represents an exercise of authority under, the older version.
-20-20-

regulation
[state]
require,"

also applies
Department
but

that

to

[of
state

"such other

facilities as

the

Environmental

Protection]

may

agency

has

not

required

pre-

construction review of

the ventilation buildings

version of the regulation.

extract

from the

affidavit

agency is that his

The most that the Sierra Club can

submitted by

agency wobbled over

regulate the ventilators at issue

decided to propose the

under this

the

head of

the issue of how

in this case, and

the
to

finally

"indirect source" regime now embodied

in regulation 7.38.
Regulation 7.38
systems says

which

that they are

now governs

tunnel

not subject to

ventilation

regulation 7.02.

We think that this exclusion seeks to remove ambiguity and is

very weak

evidence that the

new version of

regulation 7.02

would otherwise cover such systems, and no evidence at all of

the meaning of
Sierra

the old version.

Nor do

we agree with

the

Club that its reading of old regulation 7.02 is borne

out by Town of Brookline v. Commissioner of the Department of

_________________
_________________________________
Environmental Quality Engineering, 387 Mass. 372, 439 N.E.2d
__________________________________
372 (1982).
7.02

to

That case involved the application of regulation

a

diesel

fuel-powered

facility

(in

fact,

an

electrical generating station), which is listed as a facility

automatically covered by old regulation 7.02.
To

construe

definitively is

the

old

a daunting

version
task, for

-21-21-

of

regulation

it was complex,

7.02
ill-

structured, and apparently confusing even to the state agency

that administered it.

But the Sierra Club's argument depends

upon a showing by it that

the old regulation 7.02 did govern

highway and tunnel ventilation systems.

fall within the list of
regulation.

Such systems do

not

specifically named facilities in the

Similarly, the Sierra

Club has not

shown that

the state agency ever extended that version of the regulation

to such systems under the "may require" clause.
This

brings us to the attack on regulation 7.38 that is

the subject of
might

Sierra Club's

at first wonder why

overthrowing a

is

permit

at least

regulating ventilation
not

take at all if--as

not

stationary

sources

sources.

Indeed,

regulation

notes

endorsed it.

the Sierra Club

regulation which, if less

pre-construction
sources,

direct review

the
that

requirement
a sizable
systems, a

but

merely

EPA's
the

is interested in

major

in the

stationary
direction of

step that the

the EPA has

One

stringent than the

for

step

petition.

state need

ruled--such systems are

adjuncts

notice

to

approving

Conservation

Law

indirect
the

new

Foundation

57 Fed. Reg. 46310, 46311 (1992).

The answer

is that

the Sierra Club,

with considerable

imagination, has constructed the following argument: the 1990

amendments to
that

the Clean Air

sought to

forbid

Act contained a

states from

"control requirement[s]"

savings clause

softening pre-amendment

in areas that had

not attained the

-22-22-

national air quality

7515;

standard for a

pollutant, 42 U.S.C.

the Boston area has admittedly not met these standards

for certain pollutants; and

therefore (says the Sierra Club)

regulation 7.38 is in violation of the savings clause because

it substitutes
regime of

as to

tunnel ventilation systems

the new regulation

7.38 for

the more

the softer
stringent,

previously applicable regime of regulation 7.02.

We will assume without
would prevent
But even so
anything

the weakening of a
we do not

other than

implementation plan.8
7.02

deciding that the savings clause

read the savings

clause to refer

an effective, federally
It is

to

approved state

the older version of regulation

which alone was federally

1990 Clean

state implementation plan.

Air Act Amendments.

approved at the
And, as

time of the

already explained,

the Sierra

Club has failed

to establish that

the pertinent

older version of regulation 7.02 did apply to covered highway

or tunnel ventilation systems.

Accordingly, regulation

7.38

____________________
8As Senator Chafee explained in the floor debate on this
provision:
"The savings provision was intended to
ensure that there is no backsliding on
the
implementation
of
adopted
and
currently feasible measures that EPA has
approved
as
part
of
a
State
implementation plan in the past, or that
EPA has added to State plans on its own
initiative or pursuant to a court order
or settlement."
136 Cong. Rec. S17,237 (daily ed., October 26, 1990).
-23-23-

does

not

weaken a

federally approved

state implementation

plan but rather strengthens

it by extending a new

regime to

such

where

federally

ventilation

systems

previously

no

approved regime applied at all.

We are
regulation

left with two

7.38.

further arguments in

First, it is

relation to

claimed that regulation 7.38

is

invalid because, according to

was

required

approval of
Council

by

111,

142A,

the Governor of Massachusetts

but did

appears,

M.G.L. ch.

the Sierra Club, the state

not

do so.

on the premise

was

that regulation 7.38

presented by regulation 7.02.

made, it

was needed by

to remove a bar otherwise

As we have seen,

is mistaken, and invalidating

the

and the Executive

This argument

the government defendants in order

free the ventilation

to obtain

the premise

regulation 7.38 would probably

systems from any federally

enforceable

regulation.
Nevertheless,
approval,

the

issue

although irrelevant

of

governor-and-council

to the injunction

action, is

raised by the Sierra Club's petition to review EPA's approval

of the new regulation.
time limit

Since the direct review statute has a

on petitions, 42

U.S.C.

7607(b)(1),

we cannot

properly defer decision on the validity of regulation 7.38 to

some future point.
noted
that

Indeed,

that Massachusetts'
the regulation

was

EPA in approving the regulation,

Secretary

of State

properly adopted,

-24-24-

had attested

and EPA

itself

ruled

that the

Protection
approval

Massachusetts

had authority "to

by

the Governor

Department

of

Environmental

adopt such regulations without

and Council."

57 Fed.

Reg. at

46312.
It is difficult for anyone
pronounce

with

regulation

certainty

is attested

on

by

but a Massachusetts court to

this

issue.

the state

adopted and its procedural validity

secretary as

by the

state's

attorney general,

rather

strong

showing

to

invalid on

persuade

it

us to

the

validly

is supported in a

signed

regulation is

But when

brief

would take
hold

procedural grounds.

that

a
the

Assuming (as

seems likely) that its procedural

validity is open to review

in this

secretary's attestation is

court and that the state

necessary but

not conclusive,9

concluded that the

we think that

regulation was

EPA correctly

properly adopted

without

the approval of governor and council.

The state in submitting regulation 7.38 to
that it was

adopted pursuant to M.G.L. ch.

142D, not section

area pollution
Environmental

142A.

Section

111,

142B and

142B establishes a

control district and gives

Protection

the EPA said

authority

to

Boston

the Department of
issue

regulations to prevent pollution in the district.

rules

and

Regulation

____________________
9The Clean
Air Act requires a
state to provide
"necessary assurances" that it has authority under state law
to carry out
the implementation plan.
42
U.S.C.

7410(a)(2)(E)(i).
-25-25-

7.38, which
appears
The

is directed exclusively to

the Boston district,

to fit comfortably within the ambit of section 142B.

rulemaking provision

142A, contains no

of

section 142B,

requirement for approval

unlike

section

of rules by

the

state's governor or council.

The
confusing

Sierra

Club's

language

contrary

in M.G.L.

ch.

argument
111,

is
142A,

provision governing air pollution in general.

sentence,

this

section

says

that

the

on

a broader

In its opening
Department

Environmental Protection,

"in this section

one hundred and forty-two

B to one hundred and

inclusive, hereinafter

based

and in

of

sections

forty-two E,

called the department" may subject to

the approval of the governor and council adopt regulations to

control pollution.
this sentence as

Id.
___

The

Sierra Club

apparently reads

extending the governor-and-council approval

requirement of section 142A to rules made under section 142B.

We think the more natural reading of the quoted language

in

section 142A

when

is to

used without

sections,
Section

specify that the

further

explanation in

means the Department

142B,

department."
requiring

for
Nor

term "department,"
the cited

later

of Environmental Protection.

example,

does

is

anything

there

governor-and-council

refer

only

to

"the

remarkable

approval

for

about
general

regulations while not doing so for those directed to a single

district;

indeed, the

Sierra

Club reading

would make

the

-26-26-

grant

of

rulemaking

Accordingly, we

power

in

section

142B

reject this challenge to

redundant.

the EPA's approval

and dismiss the petition to review.

The

government

brief

construes

argument to embrace, in addition

a

further

claim

that

"retroactively" to the
this case.

The

to the project.

the

Sierra

Club's

to the claim just rejected,

regulation 7.38

cannot

be

applied

central artery and tunnel at issue in

regulation by its terms is intended to apply

See 310 C.M.R.
___

7.38(1).

In response the

government

argues at

length

whatever retroactivity
regime

to a

that under

may be

previously

Massachusetts

involved in applying

planned but

unbuilt

law

the new

portion of

project is permissible.
It

is not entirely clear that the Sierra Club is making

the argument

attributed to it

by the

government.

However

this may be, the EPA did not suggest that its approval of the
regulation
existing
discuss
that

projects; the

EPA's

retroactivity at all.

notice of

approval does

not

There is no reason to suppose

EPA's approval is at all dependent on the retroactivity

issue.
issue

depended on how or whether it would be applied to

We have no
that

judgment nor

is not

need, in fact
material

to the validity

no warrant, to

either to

the

decide an

district court

of the EPA action

that is the

subject of the petition to review.

-27-27-

The judgment of

the district

court is

affirmed.
________

The

petition for review is denied.

______

-28-28-